Intervention to Stop Atrocities: Kosovo History as Predictive

A few years ago I wrote a Council on Foreign Relations report titled Intervention to Stop Genocide and Mass Atrocities: International Norms and U.S. Policy. Based heavily on the Kosovo experience, I wrote that “[t]here is currently no widely accepted right or license among individual states to humanitarian intervention, as there is one to self-defense. The United States has generally interpreted its and other states’ authority to use force more broadly than many of its allies, especially with regard to self-defense, but most states and legal experts agree that there is no clearly established international legal authority justifying armed intervention into another state to stop atrocities.”

I argued that the United States should be prepared to intervene anyway in some humanitarian emergencies, and concluded:

Operating in an international legal gray zone will require tremendous investments of political and diplomatic capital, especially with respect to allies reluctant to act without clear legal authority. But the potential payoff can be high not only in terms of immediate humanitarian imperatives but also in shaping the future legal environment in ways more responsive to such needs. As the Kosovo crisis shows, operating this way in cases of urgent humanitarian necessity inevitably shapes the future normative terrain, especially as international bodies react ex post facto and the precedential value of actions are debated. For the United States, this means it must conduct its diplomacy and justify publicly its actions in ways to promote long-term a more protective regime. Meanwhile, those states skeptical of or hostile to a more human rights– protective regime must come to see it as in their own long-term interests to facilitate rather than undermine timely and decisive action.

For those interested in what we can learn from the Kosovo case about how states will view the legality of U.S. and coalition military action against Syria, I very highly recommend reading this UN Security Council debate from March 1999, following the initial NATO strikes. It shows a range of views at that time among the NATO allies and is useful for understanding how other states are likely to react to intervention in Syria.

As for NATO members, as John, Ashley, and others here at Lawfare have noted, the United States did not assert that the NATO intervention was legal; it said it was “justified and necessary to stop the violence and prevent an even greater humanitarian disaster.” And as John noted earlier today, by contrast the United Kingdom stated that “as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable.” The Netherlands asserted that the legal basis for NATO action was “more than adequate”, but didn’t state clearly the legal argument or standard. Most NATO members that spoke argued that the intervention was justified, but they didn’t refer to a specific legal basis.

As for those opposed to NATO’s intervention – including not only Russia and China as P-5 members but India and other members of the global South or non-aligned movement – most framed their objections in legal terms, and in a way that’s instructive here. The basic idea behind a doctrine of humanitarian intervention or an argument that military force is legally justified would be that Article 2(4)’s prohibition on force should give way to some other normative imperatives (humanitarian protection or enforcement of taboos against using chemical weapons). While reflecting some specific policy views about the Kosovo crisis, the statements by many of these opponents show how deeply they adhere to a different normative hierarchy: for them, sovereignty is paramount, and they will resist attempts to legally subordinate it to other principles – at least not without the check of UN Security Council sign-off.

That said, it’s also interesting to see in this document how many Muslim-majority states that would usually be very resistant to legal doctrines justifying intervention nevertheless publicly supported NATO’s action to protect Kosovar Albanians. It’s an illustration that when it comes to building international support, international law and legal arguments only matter so much.

Matthew Waxman is a law professor at Columbia Law School, where he co-chairs the Program on Law and National Security. He is also co-chair of the Cybersecurity Center at Columbia University’s Data Science Institute, as well as Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter